1844. In re GRAY. did afterwards, before the term of his said contract Bodkin and Huddleston now contended against the validity of the return.-The document which has been returned with the prisoner, and by virtue of which he has been kept in custody, has been drawn up under stat. 4 Geo. 4, c. 34, s. 3 (a). Such instruments are to (a) Section 3 enacts, that. "If any servant in husbandry, or any artificer, calico-printer, handicraftsman, miner, collier, keeler, pitman, glassman, potter, labourer, or other person, shall contract with any person or persons whomsoever to serve him, her, or them, for any time or times whatsoever, or in any other manner, and shall not enter into or commence his or her service according to his or her contract, (such contract being in writing and signed by the contracting par ties), or having entered into such service. shall absent himself or herself from his or her service before the term of his or her contract, whether such contract shall be in writing or not in writing, shall be completed, or neglect to fulfil the same, or be guilty of any other misconduct or misdemeanour in the execution thereof, or otherwise respecting the same, then and in every such case, it shall and may be lawful for any justice of the peace of the county or place where such servant in be considered as containing both commitment and conviction in one: In re Tordoft (a). There are several objections to this, of which two are clearly fatal. 1. It does not appear on the face of the document that any witnesses in support of the charge were examined on oath. In re Jones (b) is decisive on this objection. Paley on Convictions, p. 42. 2. It does not appear that the witnesses were sworn before the justice in the presence of the prisoner. The words, " duly brought before me to answer the said complaint, and I the said justice duly thereupon, then and there, in the presence as well of the said John Johnson as of the said John Gray, examine and inquire into the proofs and allegations of the said parties touching the matter of the said complaint," &c., are no answer to these objections, as it is quite consistent with anything that is stated, that the prisoner may have been called upon after the case had been heard in his absence. [Patteson, J.-The whole document seems to be ungrammatical, it does not appear that any witnesses were examined at all.] Rex v. Crowther (c) was a still stronger case than the present; there it was held, that it was not sufficient husbandry, artificer, &c., shall have so contracted, or be employed, or be found, and such justice is hereby authorized and empowered, upon complaint thereof made upon oath to him by the person or persons, or any of them, with whom such servant in husbandry, &c., shall have so contracted, or by his, her, or their steward, manager, or agent, which oath such justice is hereby empowered to administer, to issue his warrant for the apprehending every such servant in husbandry, &c., and to examine into the na ture of the complaint; and if it (a) Antè, p. 171. (c) 1 T. R. 125. 1844. In re GRAY. 1844. In re GRAY. to read over the depositions to the prisoner, if the witnesses had not been sworn and examined in his presence. 3. There is no statement of the time when the contract was made. This is requisite, as it may be that the date of the contract was previous to the passing of the act which created the present offence. 4. There is no averment that the defendant entered (a) into the service of Johnson in pursuance of or under the terms of the contract. It is to be observed that the 3rd sect. of the 4 Geo. 4, c. 34, embraces two different cases: one, where a contract to serve, in futuro, is made, and then the contract must be in writing; another, where there is no contract, but an entry into service at once; and it does not appear to which of those two cases the present conviction pointed. 5. Neither the terms of the service are set out, nor the nature of the contract, so that it may appear whether it was one properly within the meaning of the 4 Geo. 4, c. 34. Best, J., in giving judgment in Deybel's case (b), said, "It ought to appear on the face of the return that the case is brought accurately within the provisions of the act of Parliament." Lancaster v. Greaves (c), which was a case under the same statute as the present, is to the same effect. The contract may have been one not falling within the act. Ex parte Johnson (d), Johnson v. Reid (e). And for that reason the terms of it should be set out. 6. The evidence before the magistrate should have been stated. In re Tordoft (f) clearly shews that documents under a highly penal statute, as this is, must (a) Blaney's case did contain an adjudication of entry into service. See antè, p. 355, n. (b) 4 B. & A. 248. (c) 9 B. & C. 628. (d) 7 Dowl. 702. (e) 6 M. & W. 124. See also In re Jacklin (Coleridge, J.'s judgment), antè, p. 283. (ƒ) Antè, p. 180. be strictly construed, and that no presumption in favour Court. 7. There is no allegation that a warrant was issued, and that the defendant was brought before the justice under it. [Patteson, J.-Suppose the defendant chose to appear without receiving a summons, that would, no doubt, waive the necessity of serving him with one.] Lastly. The jurisdiction of the justice does not perfectly appear, as the information is not stated to have been made within the county for which he acted; the words "in and for" do not necessarily mean that the justice was, at the time the information was made, "in" the county "for" which he acted, and it is quite possi ble that he was not. The form cited here is not ac cording to that usually adopted, which always mentions the place where the justice is acting. Cowling, contrà.-As to the two first objections, the fallacy on the other side consists in reading this instrument as a conviction, whereas, in truth, it is an order, and as such is not liable to the strictness of construction contended for. The same fallacy misled the Court in (b) 17 Geo. 2, c. 5. (a) Antè, p. 182. 1844. In re GRAY. 1844. In re GRAY. In re Jones (a), where the distinction between orders and convictions was not noticed. [Patteson, J.-Supposing that this is an order, can a magistrate order a man to prison under an act of Parliament without complying with all its forms? The name of the document is not material, but can you escape from the decision in In re Tordoft (b).] One point of difference, at any rate, between this and a conviction is, that this is not an instrument on which the evidence need be set out. [Patteson, J.-It would take a good deal to convince me of that, though it is not the point we are now upon.] It is important to shew that this differs from a conviction in any respect, as then a different principle must be adopted in construing it. The 4 Geo. 4, c. 34, is to be considered as made rather for the regulation and private arrangement of workmen and masters than as creating a crime to which high penalties are attached, consequently a commitment under it is rather in the nature of an order than a conviction, and in sect. 5 the commitment is described as an order. In Rex v. The Justices of Cheshire(c), Lord Denman, C. J., in his judgment, took this distinction between an order and a conviction. "The statute directs the justices to determine whether or not the person be guilty, which certainly makes the proceeding very like a conviction. But still the adjudication is to be by an order. The distinction between an order and a conviction is decisive; namely, that in a conviction, evidence is set out, in an order there is none." The same distinction was observed in Rex v. The Justices of Staffordshire (d), where it was held that no appeal was allowed, as the document under which a person had been committed was an order and not a conviction. There, the Court, no doubt, used the word "conviction" in the (a) Antè, p. 3. (c) 5 B. & Ad. 439. (d) 12 East, 572. |